True or False: the principal can send a student to the DAEP before the ARDC meets, and prior to the manifestation determination.
The answer is True. And we have a nice illustration of this point in a recent court order from Riesel ISD.
Here’s what happened:
7-6-17: Hearing officer issues a decision in favor of the district in a case where the parent challenged the IEP for 2016-17 and related issues. Disciplinary removal was not an issue in the hearing.
8-2-17: Student is involved in an unspecified “altercation” on campus.
8-4-17: Parent appeals the due process decision to federal court. Remember: that case has nothing to do with the disciplinary incident.
8-9-17: Principal concludes that student violated Code of Conduct. Assigns him 40 days in DAEP to begin when next semester begins on 8-16-17.
8-16-17: Assignment to DAEP begins. Parents file Emergency Motion to Stay Put in federal court, seeking to have the student returned to Riesel High School.
8-21-17: ARDC meets, conducts MDR and determines that student’s behavior is not a manifestation of disability.
Does the stay put rule come into play? Is the school required to put the student back in his regular Riesel High School placement, pending the outcome of the appeal of the due process case? That’s what the parent argued. But the court disagreed.
The critical fact, according to the court, was that the ARDC decided that the behavior was not a manifestation of disability. When that’s the case, the “stay put” rule does not come into play. If the behavior had been a manifestation of disability, then the student would have been returned to his regular placement. But since it was not a manifestation, the assignment to DAEP could continue. The court said the idea that the stay put rule would insulate the student from disciplinary action would lead to an absurd result:
If the Court were to rule otherwise, such result would….lead to an absurd result permitting a disabled student to remain in general education classes at their current school even if the student repeatedly and daily: (1) used profanity; (2) brought pornography to school; (3) gambled on the school campus; (4) violated the dress code; (5) cheated on exams; and (6) smoked at school.
One more issue: was it OK for the principal to send the student to DAEP before the MDR had been done? Yes. As the court points out, the regulation says that the MDR is to be conducted with ten school days of the assignment. Here, the assignment began on 8-16. Ten school days later would be 8-29. They had the ARDC on 8-21—well within the timeline.
This is the kind of situation we discuss and practice on at the Toolbox workshops. If interested in bringing The Toolbox to your district or ESC, please let me hear from you!
This case is Leigh Ann v. Riesel ISD, still pending in the Western District of Texas. The court’s order denying the Emergency Motion to Stay Put was issued on August 29, 2017.
DAWG BONE: PRINCIPALS CAN ASSIGN TO AN INTERIM SETTING, LIKE DAEP, AND THEN HOLD THE ARDC MEETING.
Tomorrow: More controversy over immigration issues in Arizona.